cyberSLAPP Cases

The following collection of briefs were filed in cases where Internet speakers were sued for their online speech, or where the identities of Internet speakers were sought by subpoena. To the extent that Internet speech defendants seek to adapt the arguments in these briefs for their own situations, it is important to be mindful of the fact that, especially for cases under state law, each state has different procedures and laws that must be given careful consideration.

A.Z. v. Doe

A high school student and her parent sued a whistleblower who sent an anonymous email to a high school teacher who was the faculty advisor to an honorary program that showed that students could be "cool" without drinking. The email attached photos portraying several members of the program, incluiding the plaintiff, as playing beer pong and drinking, and listed plaintiff's name amopng several student who were betraying the ideals of the program. Doe moved to quash the subpoenas, and the trial court quashed the subpoena on the ground that, although plaintiff had submitted evidence sufficient to make a prima facie case that the email was false, Doe's anonymity should prevail at the balancing stage of Dendrite v. Doe.

Plaintiffs appealed, arguing that Dendrite applies only to messages placed on web sites and not to emails. The Superior Court, Appellate Division, affirmed on alternate grounds. The court decided that the Doe's affidavit, signed anonymously, had authenticated the photos as having been posted to the plaintiff student's own Facebook page, and hence plaintiffs could not make a prima facie case of falsity even though they had denied that plaintiff was drinking. The court ruled that the failure to make out a prima facie case was sufficient to require the dismissal of the claim and hence denial of discovery regardless of whether Dendrite applies to emails.

Affiliated Computer Services v. Does 1-13

Dallas County, 95th Judicial District (Texas): Plaintiff ACS filed a lawsuit for business disparagement against thirteen individuals who had posted allegedly false and defamatory statements about ACS on the Yahoo message board for ACS. ACS subsequently amended the complaint to add a claim for breach of fiduciary duty. ACS simultaneously issued a subpoena to Yahoo seeking identifying information about the defendants and additional posters who were not named as defendants. Yahoo informed the posters that it would turn over the requested information absent the filing of a motion to quash. Three defendants and two posters not named as defendants have filed motions to quash the subpoenas.

Alvis Coatings v John Does 1 through 10 (U.S. District Court, Western District of North Carolina)

A company that sells franchises for a liquid coating product that supposedly substitutes for siding sued Does who posted allegedly defamatory comments on message boards hosted by home improvement companies, citing numerous posts and alleging that they were false and malicious. The Does had posted, on several different home-improvement bulletin boards, messages denouncing Alvis' products as inferior, its marketing as fraudulent, and its principal officer as a criminal. The suit alleged that the messages had been posted by business competitors. Doe moved to quash, citing the Dendrite line of cases. In response, Alvis submitted an affidavit describing the statements in the identified posts that were false, and explaining in what respect each of them was false. The court enforced the subpoena, reasoning that no reason had been given to doubt the credibility of Alvis' evidence of falsity.

Ampex v. Doe

At a hearing on February 3, 2004, the Court denied defendant's motion for fees and costs under the California Anti-SLAPP statute. In reaching its decision, the Court refused to consider any of the affidavits submitted in connection with the motion, even though the statute clearly requires a court to do so. Cyberlaw clinic students have filed an appeal , asking the Court of Appeal to rule that Ampex's original suit is a SLAPP and that defendant is entitled to fees and costs.

AnswerThink filed a suit in Florida for defamation over statements made about it on a message board that covered its stock, and served subpoenas to try to identify the anonymous authors of the messages. Yahoo answered a subpoena by revealing the identity of one defendant, aquacool_2000, who was an AnswerThink employee. AnswerThink fired him, then brought a second suit against him in California, and issued a second subpoena to EarthLink. Aquacool_2000 moved to quash or stay compliance the subpoena, claiming, inter alia, that the complaint failed to state a claim and that the subpoena violated aquacool_2000's First Amendment right to speak anonymously and the Electronic Communications Privacy Act. The court stayed the subpoena pending a ruling on the merits from the Florida court, and the case subsequently settled.

Aquacool_2000 later sued Yahoo for disclosing his identity. That case settled as well.

Apple Computer v Doe

In December 2004, Apple filed a lawsuit in Santa Clara county against unnamed individuals who allegedly leaked information about new Apple products to several online news sites, including AppleInsider and PowerPage. Apple is seeking to breach the anonymity of the sources of the information, and has subpoenaed Nfox.com, the email service provider for PowerPage, for email messages that may identify the confidential source. At issue in this case are: 1) whether the protection of confidential sources will extend to online journalists, and 2) whether the journalists privileges can be circumvented by subpoenaing a third party service provider rather than the journalists themselves.

Art of Living Foundation v. Does 1-10, United States District Court, Northern California

Art of Living, an international religious cult based on the teachings of an Indian guru, used a DMCA take down notice to secure removal of some of its teaching manuals that appeared on two anonymously-published blogs that contained extensive criticism of the cult’s practices. “Leaving the Art of Living” http://artoflivingfree.blogspot.com/ and “Beyond the Art of Living” http://aolfree.wordpress.com/. Two months later, the cult’s US chapter registered the copyright in one of the manuals, brought suit both for copyright infringement and for defamation, and obtained subpoenas to identify the Doe bloggers. After the defamation claim was dismissed, Art of Living filed a new lawsuit limited to the claim that publication of teaching manuals for its courses revealed trade secrets, and that publication of the teaching manual for one of its free courses infringed the copyright in that manual, even though the copyright was not even registered until months after the manual had been taken down from the web site. A magistrate judge in federal court in San Jose decided that the copyright claim was a sufficient basis for identifying the Doe, departing from the general rule, previously followed in that very court, that a plaintiff needs evidence in support of its claims and that the judge needs to balance the First Amendment rights against the plaintiff’s interest in proceeding with a valid lawsuit. The judge relied on several mass copyright infringement cases brought against Doe defendants accused of improper downloading of musical recordings.
Doe has objected to the subpoena ruling, and an amicus brief from Public Citizen, the ACLU and EFF supports the objections

Bidbay.com, Inc. and George Tannous v. Bruce Spry Jr.

BidBay, an online auction site, filed a lawsuit in California against an individual for posting allegedly defamatory comments on an Internet message board. The defendant denied that he posted the messages and filed an anti-SLAPP motion. The trial court denied the motion on the grounds that, because defendant denied making the statements, the lawsuit could not chill his speech and therefore the anti-SLAPP statute is inapplicable. Defendant has appealed the decision; this is his opening brief in the appeal.

Cahill v. Doe (Delaware Supreme Court)

The case involves two postings on a blog for one of the communities served by a Delaware newspaper, the State News, which derided a Smyrna town council member named Cahill for alleged "character flaws" and "mental deterioration"; the poster also stated "Gahill is paranoid." Cahill sued claiming that the poster had accused him of clinical mental defects and of conducting a same-sex, extramarital affair, and the trial judge decided that, so long as the plaintiff has sued in good faith, there is no need to examine the basis for the suit before deciding to strip a citizen critic of his anonymity. The Delaware Supreme Court has agreed to hear the case, and Doe and his supporting amicus argue in their briefs that Delaware should follow the modern trend that requires the plaintiff to show that the claims are legally valid and to provide evidence in support of the claims before compelling the identification of his anonymous critics. Doe also argues that even if misspelling of Cahill's name accused Cahill of homosexuality, that is not defamatory.

Citadel Security Software v John Does 1-5

This case involves Citadel Security Software (CDSS), a high-tech company whose management dumped nearly 800,000 shares of stock before the company's stock price collapsed, and which now faces several class action suits under the securities laws alleging that the company hid bad news while its executives were selling off their own stock. When anonymous posters on the Yahoo! message boards complained about this pattern, the company sued five of them on general allegations of defamation and business disparagement, and has subpoenaed Yahoo! to identify the five speakers. We argue that because the First Amendment guarantees the right to speak anonymously unless that right is abused, because there is neither allegation nor evidence that the speakers committed any legal wrong, and because in any event the case was improperly filed in Texas against our client lives in Minnesota, the subpoena should be quashed.

Clem v. An Unknown Person

After a newspaper published a story on the ejection of a student from a local shopping mall, allegedly over her supposedly provocative attire, an anonymous poster appended a comment claiming that the student had actually been ejected after exposed her genitals to a woman and her children. The student sued the unknown poster for defamation and issued a subpoena to identify the poster. The newspaper moved to quash the subpoena raising both the state shield law and the First Amendment right to speak anonymously. The court held that the shield law did not apply, but followed the Solers v. Doe version of the Dendrite / Cahill analysis, and hence granted the motion to quash without prejudice to the subpoena being renewed after proper notice was given and evidence presented establishing the elements of the defamation claim that were within the plaintiff’s control.

Cohen v. Google

Model Liskula Cohen brought a pre-litigation discovery proceeding to identify the author of the blog "Skanks in NYC" who posted sexually suggestive photographs while referring to her as, for example, a "psychotic, lying, whoring ... skank." Cohen argued that the posts were defamatory and that the imputations of promiscuity would damage the value of product endorsements. The blogger opposed discovery, raising the Dendrite and Cahill cases from New Jersey and Delaware but concentrating the defense on the proposition that the statements were hyperbolic opinion and not assertions of fact. The court ordered Google to comply with the subpoena, reasoning that New York’s own discovery rules, requiring the would-be plaintiff to make "a strong showing that a cause of action exists" and "that a meritorious cause of action exists," made it unnecessary to consider constitutional issues as well. The court ruled that Cohen had made the necessary showing because the statements were capable of a defamatory meaning - that is, they contained assertions of objective fact that, if proven false, could be the predicate for a defamation action. Although Cohen’s supporting affidavit averred that the statements were false, the court’s opinion did not discuss whether she had met that aspect of the test.

Dendrite International v. Doe

A software development and servicing company brought suit in New Jersey superior court against four individuals who posted critical comments on a Yahoo! bulletin board, allegedly including defamatory statements and disclosing trade secret information. The plaintiff then sought to subpoena the identities of the four defendants. Appearing as amicus curiae, Public Citizen and the ACLU of New Jersey urged the trial judge and then the appellate court to adopt standards for judging such subpoena requests, including requirements of notice, specification of actionable statements, review of claims for legal validity, testing the factual support for the claims, and balancing the interest in anonymity against the plaintiff's interest in proceeding. Both courts agreed with this argument, and protected two of the four defendants against disclosure. The appellate court decision remains the only appellate opinion on the subject.

Diaz sued a police department and some of its officers for assault and wrongful arrest, alleging ethnic and racial bias. She subpoenaed the Fraternal Order of Police, Montgomery County Lodge 35, which operates a web site with a message board for its members. The subpoena requested the last five years' worth of server and database logs, and all other software reports, related to the message board or any other web sites the lodge maintained. The message board reportedly contained negative comments about Latin Americans, and Diaz argued that some nonmembers of the Lodge, possibly including the defendants, could have posted those comments. The Lodge objected, arguing that the information was irrelevant, protected under the First Amendment, and that disclosure would impose an undue burden. A magistrate judge in Maryland U.S. District Court agreed, and denied Diaz's motion to compel compliance. The Court noted that the plaintiff had no factual basis for thinking the defendants posted on the web board, and that the records would not necessarily show a link to the defendants since the records would show only user IP addresses.

Doe v. Securities and Exchange Commission

The SEC subpoenaed Google for information identifying the owner of a gmail address, in support of an investigation into whether investors had been defrauded into buying stock in “Jammin Java” by a flurry of online newsletters touting the stock that caused a run-up in the price of the stock, which just as quickly plummeted. The SEC contended that it had information tying the gmail address to the dissemination of false and misleading statements about a company that was allegedly running a pump and dump operation, and sought the information to help determine whether the promotional material failed to disclose the financial information of its disseminators. Doe moved the United States District Court for the Northern District of California to quash the subpoena, claiming that he used the email address to express political opinions online and that the Dendrite test should be applied requiring notice to the user followed by a showing of wrongdoing. The magistrate judge held, however, that Dendrite applies only in private litigation and does not restrict access to information for a government investigation, and tghat it is enough for the government to meet the normal test for enforcement of an administrative subpoena, that the information sought be relevant and material to a lawful investigation.

Doe v. Superior Court of Arizona

Nelson Ludlow, president of software development company Mobilisa, Inc., used the company's email system to send an intimate, personal communication to Shara Smith. (Ludlow is married to someone else.) The message got into the hands of Doe, who used The Suggestion Box, Inc., a company that specializes in relaying email anonymously, to send it to people at Mobilisa with the

subject line "Is this a company you want to work for?". Mobilisa sued Doe in Arizona state court, claiming that he unlawfully gained access to the email, and sought discovery against The Suggestion Box to identify him.

The court adopted the standard set out in Doe v. Cahill, 884 A.2d 451 (Del. 2005), which requires that to discover the name of an anonymous speaker the plaintiff must (1) make reasonable efforts to notify the anonymous speaker and (2) establish that it would survive summary judgment. Applying this standard, the trial court permitted discovery.

Doe v. TS et al. (Oregon)

An anonymous plaintiff filed suit in the Oregon Circuit Court for Clackamas County against four pseudonymous defendants who criticized him on blogs run by several Portland area publications, including Willamette Week and the Portland Mercury. When the publications objected to a subpoena seeking to identify the defendants, plaintiff moved to compel production. The media entities who were subpoenaed opposed based on the First Amendment right to speak anonymously, the reporter’s source privilege, and Oregon’s shield statute, which protects against compelled disclosure of "the source of any published or unpublished information obtained . . . in the course of gathering, receiving, or processing information for any medium of communication to the public," as well as "any unpublished information obtained or prepared . . . in the course of gathering, receiving or processing information for any medium of communication to the public." The court relying on the shield statute, denied discovery.

Dominick v. MySpace

Larry Dominick, the Town President of Cicero, Illinois, filed a petition in Cook County Circuit Court asking judge to order the disclosure of the identities of the author of two MySpace profiles, purporting to be the president’s own profiles, on the ground that the profiles allegedly included defamatory comments and unnamed privacy violations. An amicus brief argues that, because the President claimed to be acting in his official capacity as a town official, the Stored Communications Act bars the use of ordinary civil discovery to obtain subscriber information, and in any event Dominick has not met the well-accepted Dendrite test under the First Amendment because he has not notified the anonymous speakers, set forth the allegedly defamatory or otherwise unlawful statements, alleged vital elements of the purported causes of action (such as actual malice) or produced any evidence to support his claims.

Donato v. Moldow

Four public officials and political leaders in a New Jersey suburb of New York brought suit in state superior court against the webmaster of a bulletin board devoted to local political issues, as well as against a large number of constituents who persons who posted critical comments; plaintiffs sent subpoenas to the webmaster's ISP seeking the names of the critical posters. Appearing as amici curiae, Public Citizen and the ACLU of New Jersey argued that the webmaster was immune from suit under the Communications Decency Act, and that the plaintiffs had not met the Dendrite standard for learning the identities of the posters. Amici also argued that the Court had the responsibility to protect against improper identification of the critics of public officials even if they did not appear in court to defend their anonymity.

Dynacq International, Inc. v. Yahoo Inc.

Plaintiff in a civil action sought to identify numerous John Does who had posted on the Yahoo! message board for the company. Specially appearing, Doe moved to quash the subpoena based on his free speech rights and based on the fact that the Texas court did not have personal jurisdiction over him. The Doe did not reside with Texas or have the minimum requisite contacts with that state. Ruling from the bench, the judge quashed the subpoena.

Equidyne Corp. v. Doe

Equidyne Corporation sued several anonymous posters alleging that, in violation of their employment agreements, they posted confidential inside information on the Raging Bull and Yahoo! message boards about Equidyne. After one of the Does, Aeschylus_2000, moved to quash arguing that he was not an employee, Equidyne changed theories and argued that, by urging viewers to give their proxies to a recently announced slate of challengers for the company's board, Aeschylus has violated the SEC's proxy rules both by not disclosing his identity, his shareholdings, and similar data, and by supporting a slate that has itself not complied with the disclosure rules. The district judge agreed to apply a standard similar to the one adopted by the New Jersey courts in Dendrite v. Doe, but found that Equidyne had shown a prima facie case under federal securities laws, and that the prima facie case did not include a showing of actual damages. On appeal, all parties agree that the Dendrite standard is the correct one; they disagree about whether it was properly followed in this case.

ESSENT PRMC, L.P., V. JOHN DOES 1-10

The case arose from a blog about the Paris Regional Medical Center in Paris, Texas, which included analysis of problems at the hospital (read blog here). Claiming a concern for patient privacy, Essent, the operator of the Medical Center, sued for defamation, and immediately sought discovery to identify the employees who, Essent claimed, were revealing confidential patient information in the course of criticizing abuses at the hospital. The Doe, represented by James Rodgers of the Moore Law Firm in Paris, sought to block discovery but District Judge Scott McDowell upheld the request. However, the court of appeals has now reversed the case and sent it back to the lower court for further consideration, embracing the Doe v. Cahill standard that requires evidence sufficient to defeat a motion for summary judgment, but leaving it to the trial judge to decide whether the standard applies in the first instance.

Faconnable v. Does

A member of the public edited a highly promotional Wikipedia page about a fashion company to point out a relationship between the company’s Lebanese owner and Hezbollah, which has been designated as a terrorist organization. The company brought suit in the United States District Court for the District of Colorado for libel and trademark infringement and, based on an ex parte motion for early discovery that ignored the cases requiring notice to the anonymous speaker and a legal and evidentiary showing that the case is meritorious, generally obtained a court order requiring Skybeam, the poster’s Internet Service Provider (“ISP”), to disclose the poster’s name. On a motion for reconsideration, the magistrate judge acknowledged the general rule but expressly declined to follow it, choosing instead most courts require notice to the anonymous speaker and a detailed showing that the case has possible merit, but he declined to follow those cases. Skybeam has asked the district judge to overturn the magistrate judge’s order, and has sought a stay of the subpoena until the objections can be heard..

Farey-Jones v Buckingham

Farey-Jones, embroiled in commercial litigation with two officers of Integrated Capital Associates (ICA), instructed his attorney to issue a subpoena to ICA’s Internet Service Provider requesting “‘all copies of e-mails sent or received by anyone’ at ICA, with no limitation as to time or scope.” The ISP provided Farey-Jones with a sample of 339 e-mails from ICA officers and employees, most of which were unrelated to the litigation and many of which were privileged or personal. When the ICA officials found out about the disclosures, they sought discovery sanctions, which were granted by Magistrate Judge Brazil in the Northern District of California. Judge Brazil found that the subpoena was “massively overbroad,” “patently unlawful,” and “transparently and egregiously” violated the Federal Rules of Civil Procedure. The Court imposed monetary sanctions on the client as well as the lawyer. Judge Brazil’s Order is posted here. Later, the officers and other ICA employees whose e-mails were disclosed sued Farey-Jones and his attorney under several federal statutes, including the Stored Communications Act and the Computer Fraud and Abuse Act. The trial judge dismissed the suit, but the Ninth Circuit, reinstated the claim under the Stored Communications Act and ordered that the plaintiffs be allowed to amend their claim under the Computer Fraud and Abuse Act. The Ninth Circuit’s decision in Theofel v. Farey Jones is published at 341 F.3d 978 (9th Cir. 2003).

First Cash Financial Services v. John Doe aka Knowfcfs

John Doe is an anonymous poster on an internet message board who made some statements critical of Plaintiff First Cash, a Texas-based chain of pawn shops and check cashing services. First Cash sued doe in Texas, claiming breach of contract, on the claim that Doe "may have been" an employee who signed a confidentiality agreement. First Cash then sought a California subpoena in Santa Clara County to require Yahoo to reveal Doe's identity. Doe filed a Special Motion to Strike the subpoena, claiming that the lawsuit was a SLAPP (litigation aimed at silencing critics). Doe also sought the court's approval to file a declaration in support of his claim with his signature hidden, to preserve his anonymity.

At issue: Whether California's SLAPP statute can be used to stop California subpoenas seeking the identity of anonymous Internet speakers without just cause.

FirstWave Technologies v. Doe

FirstWave, an Atlanta company specializing in designing internet strategies for other companies had quarterly results below expectations, and in anticipation of the release of the earnings report placed press releases on its web site without password protection When a member of the public nosed around on its site and posted the link to Yahoo! message board related to FirstWave, drawing substantial adverse comment, FirstWave sued alleging that the person who found the release on its site had violated Georgia computer privacy laws, and it subpoenaed BellSouth to identify the original finder of the information, and, without amending its complaint to allege other violations of the law, subpoenaed Yahoo! to identify the dozens of persons who had discussed the information on the message board. The motion to quash filed by the Doe defendant is provided. When threatened with a motion to quash and SLAPP motion by one of the discussants, the second subpoena was withdrawn.

Fisher v Doe (Ohio Court of Appeals, First District)

An anonymous individual or individuals sent email and letters to the plaintiff’s employers accusing the plaintiff of illegal drug use, posting of gay pornography, and soliciting a former patient for mutual sex and drug activity. Plaintiff believed that a particular Californian was responsible, but that individual’s counsel denied that he was responsible. Plaintiff then filed suit in state court in Cincinnati, Ohio, and served a subpoena on Google to obtain information about the user of the gmail account that had been used to send the email. After Google gave notice to the gmail user, it revealed several IP addresses that had been used to access the account, and plaintiff subpoenaed Verizon to identify the individual who had used one of those IP addresses. Doe, represented by the same attorney who had denied that the suspected Californian was responsible for the communications at issue. Doe moved to quash the subpoena, and plaintiff opposed the motion, filing an affidavit that purported to show that several of the statements were false. The trial court enforced the subpoena in part, finding that the plaintiff had presented a prima facie case of defamation. Doe appealed, arguing that the court of appeal should apply the Dendrite standard, although Doe still contended that he was not the person who had sent out the allegedly tortious letters or email; plaintiff defended the trial court’s decision based on the standard set forth by the California Court of Appeal in Krinsky v. Doe No. 6.

The Court of Appeals affirmed, but not on the grounds argued. Instead, the court held that cases such as Dendrite and Krinsky apply only to statements made anonymously by defendants in a public forum such as a message board, blog or consumer review forum. But private communications are just ordinary tort suits in which anonymity concerns do not raise any First Amendment issues beyond those ordinarily raised by suits for defamation and similar torts. Therefore, the only issue was whether the Doe would be subject to an undue burden if his name and other identifying information is provided to the plaintiff

Fitch v. Doe

Plaintiff sued Doe, who had sent an email in the plaintiff's own name to several members of a community association in which the plaintiff was active. Plaintiff claimed that this constituted both identity theft and other torts under state law. Doe defended in the trial court solely on the ground that the subpoena should not be enforced because his internet access was by cable and the Cable Communications Policy Act, 47 U.S.C. sec. 551(c) forbids ANY subpoenas for confidential subscriber information unless there is strong proof of criminal activity. The trial court found that in any event Doe had consented to such subpoenas in his user agreement. Doe appealed, and repeated his Cable Act argument but also argued that the First Amendment right of anonymity required a finding that his email was actionable. Members of the cyberslapp coalition, and amici curiae, supported the First Amendment argument. The Supreme Judicial Court of Maine found insufficient evidence of consent in the user agreement, but went on to reject the Cable Act argument, finding that subpoenas could be sought in civil cases. The Court also decided that it could hear an appeal from the decision enforcing the subpoena because otherwise the right to anonymity would be irretrievably lost, and it took note of courts that had adopted standards for deciding this issue under the First Amendment. However, the court decided that because the First Amendment argument had not been raised below, it could not be considered for the first time on

Forensic Advisors, Inc. v. Matrixx Initiatives, Inc.

Matrixx Initiatives sued numerous anonymous posters over comments they made on message boards. In a purported attempt to learn their identities, Matrixx subpoenaed a stock newsletter called the Eyeshade Report that had published an unfavorable article on the company. Matrixx sought the names of every person who read the report, every source of information for the report, and all notes and drafts. The company did not identify any connection beween the Internet posters and the Eyeshade Report. It only speculated that some readers of the publication, or sources, may have been the Internet posters in question. Public Citizen, joined by six other groups -- the American Civil Liberties Union of Maryland, the American Booksellers Foundation for Free Expression, the American Civil Liberties Union of the National Capital Area, the Association of American Publishers, the Electronic Frontier Foundation, the Electronic Privacy Information Center, the Freedom to Read Foundation, Inc., and Reporters Committee for Freedom of the Press -- filed an amicus brief arguing that the Maryland news media privilege prevented disclosure of sources and information collected in the course of reporting, and that the First Amendment right to read anonymously barred disclosure of a list of readers and subscribers.

Freedman v. America Online

After Freedman sent an anonymous email in connection with a local political campaign, the recipients complained to the local police that they were being harassed, and the police asked AOL to supply information identifying the sender. Along with the "request," they sent a warrant application form that was not signed by a judge, and indeed had never been submitted for judicial approval. After AOL identified the sender, he sued both AOL and the police officers for violating his rights under the Electronic Communication Privacy Act. The action against AOL was tranferred to Virginia under the forum selection clause in the user agreement, but the district court granted partial summary judgment finding that the officers violated ECPA by soliciting disclosure from AOL without following the proper procedures.

Garrett v. Better Publications, LLC.

After Charlottesville, Virginia blogger Waldo Jaquith (www.cvillenews.com) reported on a defamation action that a colorful local figure had brought against a newspaper for its reports on criminal charges lodged against the plaintiff, the plaintiff subpoenaed the blogger to produce all of his communications with sources for his blog post, and to identify everybody who had posted anonymous comments about the blog post or even read the blog post online. Jaquith opposed the plaintiff's motion to compel discovery, contending both that as a the blogger he is a journalist and hence protected by the qualified privilege of journalists not to identify their sources or produce their working materials, and that the anonymous posters were protected by the qualified privilege to speak anonymously.

Ghanam v. Doe

The Deputy Superintendent of Public Works for the City of Warren, Michigan, sued several anonymous defendants who posted critical remarks on a blog called the Warren Forum, commenting on the unaccounted disappearance of nearly 4000 tons of rock salt and speculating about plaintiff’s responsibility. Plaintiff subpoenaed the forum to identify the defendants, but the operator of the forum sought a protective order against his deposition. The trial court denied protection, but the Michigan Court of Appeals reversed because plaintiff had neither attempted to notify the anonymous defendants that their First Amendment right to speak anonymous was at risk, nor specified the allegedly defamatory statements in its complaint, nor identified, even in its opposition to the requested protected order, any statements that were sufficiently factual to be proper subjects of a defamation action. The court cast a longing glance at the First Amendment requirements imposed by other states, such as New Jersey in Dendrite v. and Delaware in Doe v. Cahill, but felt constrained by the decision of the previous panel of the Michigan Court of Appeals in Thomas Cooley Law School v. Doe which held that Michigan’s rules allowing protective orders, pending a possible motion by the Doe for summary judgment, affords sufficient protection to obviate the need for special First Amendment rules requiring the presentation of evidence supporting the claims. The court urged the Michigan Supreme Court and state legislature to impose such requirements, however.

Global Telemedia ("GT"), a telecommunications company, sued anonymous posters to a message board run by Raging Bull that covered GT's stock, claiming that their posts were defamatory. The defendants responded with a motion under a California anti-SLAPP provision, which requires a suit be dismissed if it is based on a defendant's exercise of his free-speech rights in connection with a public issue and the plaintiff cannot show a probability of success on the merits.

The court held that the speech was "in connection with a public issue," as required by the anti-SLAPP law, primarily because it concerned a publicly traded company. Once this was shown, the burden shifted to the plaintiff to show a probability of success on the merits. The court observed that in libel cases, statements of opinion are not actionable, and that the postings on the message board were in a form that indicated they were meant as opinion. In particular, postings to the board contained "hyperbole, invective, short-hand phrases and language not generally found in fact-based documents." The informality, language, and context of the messages were not such as to lead a reasonable reader to think they were expressing facts. Moreover, changes in the plaintiff's stock price were uncorrelated with Doe's postings, and the plaintiff could not otherwise show damages as a result of the statements. The court therefore found that the plaintiff had not shown a probability of success on the merits, and dismissed the case.

Greenbaum v. Google

On the eve of her campaign for re-election, a member of the school board in Lawrence, New York, filed a petition for prelitigation discovery to identify "Orthomom" and people who used the Orthomom blog to post criticisms of the board member's position in opposition to public funding for the extracurricular activities of children attending private religious schools. Some commenters had called the member a "bigot" for opposing the funding. Public Citizen represents Orthomom in arguing that a blogger cannot be held liable for comments posted on her blog by others, and that in any event the comments are not defamatory and compelled identification would violate her First Amendment right, and the right of her web site's users, to speak anonymously.

Gunning v. Doe

Marie Gunning, a citizen who is active in politics in Freeport, Maine, and who was an unsuccessful candidate for Town Council, sued the anonymous host and author of a local parody newspaper, filed a defamation action over such statements as that “rumors continue that [she] suffers from bipolar disorder with acute depression and paranoia, amplified by substance abuse.” She pursued discovery, initially in Maine but eventually in California because that was where the online version of the parody newspaper was hosted. The California court, applying the Krinsky v. Doe standard for identification of anonymous defendants, held that Gunning had not made a sufficient showing of a valid claim because the Does’ speech was opinion rather than fact. Gunning then came back to Massachusetts and sought leave to complete alternative service by sending the complaint to Does’ counsel. The Maine trial court denied that motion because counsel could not be required to identify his client. Plaintiff also sought leave to take depostions of people who knew who was publishing the hard copies of the newspaper that were disseminated in town. The motion was granted, but the deponent and Does both moved to quash the discovery. The trial court granted that motion to quash, holding first that the Dendrite standard governed such motions in Maine; second that plaintiffs had properly shown that at least some of the allegedly defamatory statements were matters of fact and were false; but that the viability of plaintiff’s claims had been fully litigated in the California discovery proceeding and the disposition of the discovery motions in California was res judicata in Maine. The Maine Supreme Court affirmed, but only on the res judicata ground; it chose not to address the question whether Dendrite or some similar standard would apply in Maine. A lone dissenter objected to the res judicata ruling and implied a hostile attitude toward Dendrite

Highfields Capital Management v John Doe

Highfields field suit in federal court in Massachusetts against a poster on a Yahoo! bulletin board for Silicon Graphics, Inc., using the pseudonym “Highfields Capital.” Highfields, which is SGI’s biggest investor, alleged that the use of its name in the pseudonym infringed its mark, and constituted commercial disparagement in violation of both state and federal law. After Highfields subpoenaed Yahoo! for information about Doe (and others), Doe moved to quash in the Northern District of California. Following the rulings in Dendrite v Doe and Columbia Ins. Co. v. Seescandy.com, Magistrate Judge Wayne Brazil recommended that the subpoena be quashed because plaintiff had not submitted evidentiary support for its claims, and District Judge Maxine Chesney adopted his recommendation. The principal opinion reasons that the interest in speaking anonymously requires more than the mere pleading of a cause of action: “It is not enough for a plaintiff to plead and pray. Allegation and speculation are insufficient. . . . This court may not enforce the subpoena if, under plaintiff’s showing, any essential fact or finding lack requisite evidentiary support.”

Hritz v. Jane Doe

The Vice-President / General Counsel of a steel company filed a "pre-litigation petition" in Ohio state court seeking to identify an individual who had criticized the plaintiff on a Yahoo! bulletin board; one of the criticisms was that the plaintiff was too litigious. Represented by a team of lawyers led by Public Citizen and including EFF, the Doe first removed the case to federal court in Ohio, and then sought to quash the subpoena in Virginia federal court. The briefs include papers relating to the (unsuccessful) effort to remove to federal court, and the motion to quash which has never been decided, the plaintiff apparently having lost interest in the matter after the Doe stopped posting.

Hvide v. Doe

The chief executive of a company brought suit in Florida state court alleging that postings on a Yahoo! bulletin board accusing him of embezzlement were defamatory. The court ordered a defendant identified, and an appellate court refused to allow an appeal. The ACLU's amicus brief is provided.

In re 2TheMart.com, Inc. Securities Litigation

In a precedent-setting ruling, a federal court in Seattle upheld the right to speak anonymously on the Internet. U.S. District Court Judge Thomas Zilly quashed a subpoena seeking to force an Internet service provider to disclose the identity of persons who spoke anonymously on an Internet message board. The decision was the first in the country to address the standard for compliance with a subpoena where the "J. Doe" (who used the pseudonym NoGuano) was not a party to the case, and no allegations of liability against Doe had been made. The court held that the identities would not be turned over unless (1) the subpoena was issued in good faith and not for any improper purpose; (2) the information sought relates to a core claim or defense; (3)the identifying information is directly and materially relevant to that core or defense; and (4) information sufficient to establish or disprove that claim or defense is unavailable from any other source.

In re Jennifer London

As part of a divorce and custody proceeding in the French territory of St. Martin, a woman claimed that her spouse was engaged in adulterous affairs with men. She invoked the jurisdiction of a federal court in California to subpoena Yahoo! to identify the owners several different Yahoo! accounts email addresses in order to prove her allegations about his sexual misconduct. The court initially refused to authorize a subpoena, but authorized it upon renewed application. The spouse and four John Does moved to quash the subpoena, relying on both statutory limits on the use of federal court proceedings for discovery in support of proceedings in other countries, as well as the First Amendment protections for anonymous speech, but the court largely upheld the subpoenas. The case is now under appeal to the United States Court of Appeals for the Ninth Circuit.

In Re Jimmie Cokinos

A public official sought pre-litigation discovery to identify a constituent who criticized him for various public expenditures that the official approved during his tenure. The official claimed that the criticisms were defematory and that they caused him to lose his re-0election campaign. The official also argued that the criculation of anonymous emails opposing his reelection violated Texas campaign laws requiring identification of the authors of all campaign literature. The Doe, a public employee was worried about being discahregd if the remaining incumbents were able to identify him, filed a motion to quash the subpoena which was granted.

In re John Does 1 and 2

PRK Enterprises brought a pre-litigation discovery proceeding under Rule 202 of the Texas Rules of Civil Procedure, seeking to identify the anonymous creators of several blogs, www.operationkleinwatch.blogspot.com, http://www.notthisonetoojacques.blogspot.com/, and www.samtheeagleusa.blogspot.com where PRK owner Philip Klein was criticized. The bloggers moved to quash the subpoena, but the trial court denied that motion (and the Texas Court of Appeals affirmed) on the ground that Google had purportedly consented to the discovery. (Google does not quite characterize it that way – it says that it entered agreements that were intended to allow the bloggers’ First Amendment rights to be be resolved prior to Google providing any identifying information to Klein). The bloggers sought mandamus from the Texas Supreme Court, arguing both that their First Amendment right to speak anonymously had been disregarded, and that the order compelling discovery was in violation of the procedures required by Texas law. The Supreme Court reached only the latter ground, saying that the agreement of the party seeking discovery and the party from which discovery was sought was not a sufficient basis for an order compelling discovery because the trial court must still make the findings required by the Rule, that allowing the discovery "may prevent a failure or delay of justice in an anticipated suit," and that "the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure." The Court remanded the case to allow the trial court to decide whether that text could be met.

In re Konig v. CSC Holdings

The Croton Republican Committee and its chair Susan Konig, who had been a candidate for the county board of legislators, brought a petition for pre-litigation disclosure of the identities of the anonymous administrator of the “Watch Croton” blog, and of several anonymous speakers who had posted allegedly defamatory statements there. Without discussing the First Amendment, the Appellate Division of the New York Supreme Court held that plaintiffs had not met the requirements of the CPLR 3102(c) by showing that the accusations of criminality were anything more than heated campaign rhetoric that qualifies as protected opinion, or by demonstrating that any of the other statements over which they sought to sue were defamatory per se.

In re Petition of MP

The owner of a country club located in Del Mar, California (near San Diego), filed anonymously a petition for pre-litigation discovery in state court in Ft. Worth, Texas, seeking to identify the anonymous blogger and several anonymous commenters who posted statements on the Del Mar Country Club Sucks blog. She claimed that she was defamed by comments that complained about her management of the club as well as sneering at her for gaining control of the club by marrying its very wealthy owner. The blogger moved to quash and Public Citizen and the ACLU of Texas filed a brief as amicus curiae supporting the motion to quash, arguing that the petitioner had not justified filing suit in Texas over comments on a blog about a California country club, and that in any event the country club owner had not produced sufficient evidence to overcome the right to speak anonymously. After allowing the petitioner to amend her petition to meet the standard, the trial judge quashed the subpoena.

In re Subpoena to 43SB.com

Melaleuca, an Idaho company, served a cease and desist letter on the host of the “43rd State Blues” blog, www.43sb.com, complaining about a posting by “Tom Paine” that criticized Frank L. VanderSloot, the CEO of Melaleuca, for his relationship with Senator Larry Craig. That cease and desist letter was posted on the blog under the pseudonym “d2.” Thereafter Melaleuca issued a subpoena under the Digital Millenium Copyright Act, asserting that the letter was copyrighted and seeking to identify both Tom Paine, the target of the C&D letter, and d2, the poster of the C&D letter. Melaleuca argued that it had reason to believe that Tom Paine might have been responsible for the posting of the letter.

Arguing on behalf of both anonymous posters, the blogger moved to quash the subpoena, arguing that a cease and desist letter is not copyrightable, and that important fair use and First Amendment interests barred enforcement of the subpoena. At oral argument, however, the blogger limited himself to arguing that the letter was not copyrightable and that the First Amendment ought at least protect Tom Paine against being identified.

The court enforced the subpoena in part and quashed it in part, without reaching either of these arguments. It decided first that because Melaleuca has registered a copyright in the letter, the registration was prima facie evidence of a valid copyright and a prima facie case is sufficient to support enforcement of the subpoena. Second, it held that there was no evidence tying Tom Paine to the posting of the C&D letter, and the identification of Tom Paine was therefore denied for that reason alone.

Independent Newspapers, Inc. v. Zebulon J. Brodie

Zebulon Brodie, a real estate developer, filed a lawsuit alleging that three people on an online community forum and Independent Newspapers, Inc., the forum operator, had conspired to defame him. Brodie asked a court to order Independent Newspapers to identify the names of the forum’s users. Independent Newspapers opposed that discovery, arguing that the court should require proof that the users’ comments were false and defamatory, but the court ordered the discovery. Public Citizen is representing the newspaper chain on appeal, arguing that plaintiffs should have to make a factual and legal showing that they have a realistic possibility of succeeding in litigation before courts should order that the names of anonymous critics be revealed.

Intel v. Hamidi

This California state law case case arises from six e-mail messages sent by ex-employee Ken Hamidi during a two-year period to worldwide employees of Intel criticizing the company's treatment of its employees. The messages admittedly did no harm to Intel's computer systems and caused no delays in its computer services. Nonetheless, in a 34 page opinion, the Third Appellate District Court in California ruled that sending unwanted e-mails was an illegal "trespass to chattels."

IntelliGender v. Soriano

An anonymous Internet user sent two emails in the name of Rebecca Griffin, the founder of Intelligender, announcing the settlement of a class action and the bringing of a second suit over a medical device sold by Intelligender. Intelligender, which was in the midst of litigation in the United States District Court for the Eastern District of Texas against some business rivals, issued a subpoena to identify the Doe. Doe moved to quash, arguing that the emails were a parody to criticize Griffin, but Intelligender argued that both the impersonation of Griffin, and several of the statements in the emails, were false and defamatory. The district court, applying the standard of In re Baxter, denied the motion to quash. Doe has sought review in the United States Court of Appeals for the Fifth Circuit, both by appeal and by mandamus.

iXL v. Doe

An Internet consulting start-up brought suit in Georgia state court against an individual who criticized it on a Yahoo! bulletin board, alleging that the defendant was an employee in breach of his employment contract promising not to disparage the company or reveal internal information. Represented by Public Citizen, the defendant moved to quash, arguing that he was not an employee and submitting confidential proofs of his non-employee status. Because the plaintiff has gone out of business, the case was not pursued to decision.

Jacobson v. John Doe or Jane Doe

Rebecca Jacobson, a Republican Party leader whose photograph was published as part of a newspaper’s coverage of a campaign visit to Idaho by presidential candidate Rick Santorum, brought a defamation suit against three anonymous Internet users who posted comments about Jacobson. One Doe speculated whether $10,000 that had recently been found missing from the party’s treasury had been stuffed down her blouse; two Does discussed the first Doe’s comments. In rejecting a motion to quash filed by Spokesman Review, the Idaho District Judge followed a standard that he felt represented the best of the Dendrite and Cahill standards and held that a valid claim of defamation had been pleaded against the first Doe, and that there was sufficient evidence of both falsity and actual malice to warrant that Doe’s identification; the subpoena to identify the second and third Does was quashed because they just expressed their opinions about the first Doe’s comments.

Kessler v. Doe

Amicus brief filed by EFF in the California Court of Appeal in support of a John Doe, "Mezzzman," who was sued by the president of Metalclad after posting messages critical of him on a Yahoo message board. Mezzzman brought a motion under a California law, called the anti-SLAPP law (Strategic Lawsuits Against Public Participation), designed to allow defendants in cases aimed at silencing their speech to quickly dispose of the case. The case settled on confidential terms before a decision was reached by the Court.

Kimberlite Corp. v. John Does 1 to 20

Kimberlite Corp., a maker of security equipment, filed suit in United States District Court of the Northern District of California against Doe defendants who allegedly obtained access to its computer system and to the email accounts of several of its employees, alleging trespass to chattels and violations of the Computer Fraud and Abuse Act. Without any order having been granted authorizing pre-service discovery, plaintiff sent to subpoena to ATT seeking to identify the user of the IP number from which the security breach had been effected. Doe, identifying himself as user of the IP number, used the ECF system to file an anonymous, pro se letter asking that the subpoena be quashed, invoking his right of privacy under the Cable Communications Policy Act, and arguing that no violation of the statute had been shown. Kimberlite opposed the motion, submitting affidavits evidencing a breach of its computer systems. The Court denied the motion to quash, subject to the requirement that ATT provide notice to all users who might be identified, to ensure that they have an opportunity to oppose their identification.

La Societe Metro Cash & Carry France v. Time Warner Cable

A French company obtained an order requiring Time Warner to identify one of its cable subscribers who had used its services to send an email accusing the plaintiff of improper business practices. The subscriber invoked her rights under 47 U.S.C. § 551, which forbids cable companies from identifying subscribers without notice and a court order, and objected to disclosure without an order from a United States court. The French company then filed a bill of discovery seeking the same information in Connecticut state court. The subscriber invoked by analogy the rulings of various state and federal courts in Internet cases, requiring that the right to obtain a remedy for defamation be balanced against the First Amendment right to anonymity. The court declined to follow the French court's order, applied a balancing test and found probably cause to believe that plaintiff had suffered damages as a result of tortious conduct by the Doe, and the requested discovery was granted.

Lesher v. John and/or Jane Does 1 - 178

After Mark and Joanna Lesher were indicted for rape in Texas, and during their trial on those charges, a large number of messages about them were posted on message boards operated by Topix.com. Many of the messages echoed the criminal charges against them and the testimony of the complaining witness. After they were acquitted, the Leshers filed suit in District Court for Tarrant County, Texas against 178 Doe posters based on their having made some 800 defamatory posts. After plaintiffs obtained a commission for discovery in California, they served a California subpoena on Topix seeking information identifying the Doe defendants. Topix moved to quash, while also indicating that it had attempted to negotiate a middle ground with plaintiffs whereby some fo the Does would be identified. The trial court denied the motion to quash and ordered the parties to confer about which posts were “relevant” to the litigation. The court indicated that it would order disclosure of the identities of the authors of those posts, subject to a protective order shielding the identities from public disclosure.

Marvin v. Shell

Radio host filed a defamation suit against three defendants based on their statements about him on internet bulletin boards. The suit was brought in federal court, with subject matter jurisdiction based on diversity of citizenship: the plaintiff lived in Illinois, and one of the three defendants was known to live out of state. The residence of the other two John Doe defendants was not known. On its own motion, the Court dismissed the action, because there cannot be any certainty that the parties are from different states if their place of residence is not alleged in the complaint.

Matrixx Initiatives v. Doe

In connection with defamation claims pending in Arizona over statements posted on Yahoo! and Silicon Investor message boards, Matrixx obtained subpoenas to Yahoo for two posters, but they had used identity-obfuscation software that deprived Yahoo! of their identifying information. Using information that Yahoo! did have, Matrixx was able to trace one Doe to Barbary. a hedge fund managed by Worthington. Worthington was deposed in San Francisco, but he refused to answer any questions about the identifies of the two Does, including whether he himself was either one. He did admit knowing one of the named defendants in the case. Worthington was ordered to answer the deposition questions, and appealed raising the First Amendment rights of the two Does. For the first time on appeal, Matrixx argued that Worthington lacked standing to pursue their First Amendment rights. The Court of Appeal affirmed on that ground. It noted with apparent approval cases from Virginia and DC where ISP’s had been allowed to defend the First Amendment rights of their customers, but said the relationship between the third party witnesses and the Doe defendants was not such as to allow standing on that ground.

McMann v. Doe

The Superior Court of Arizona dismissed a Massachusetts real estate developer's lawsuit against the anonymous operator of an Internet gripe site. The court held that Paul McMann failed to substantiate his claims against the owner of the domain name paulmcmann.com, quashed a subpoena seeking the owner's identity, and dismissed the case. A nearly identical lawsuit by McMann had already been dismissed by another court.

Melvin v. Doe

An anonymous online newsletter accused a Pennsylvania state court judge of improperly lobbying the governor on behalf of a friend for a judicial appointment. Judge Melvin sued the web site operator for libel. The John Doe defendant argued that his anonymity should not be breached unless Judge Melvin could prove she suffered actual economic harm from the alleged libel. The trial court rejected this argument, but held that "plaintiff should not be permitted to engage in discovery to learn the identity of the Doe defendants until the Doe defendant has an opportunity to establish that, as a matter of law, plaintiff could not prevail in this lawsuit." The Court also said that a protective order should be entered to prevent disclosure of defendant's identity to third parties until the plaintiff prevails in the lawsuit. Doe recently filed a petition for review to the Supreme Court of Pennsylvania appealing the trial court's decision to require disclosure of Doe's identity to the plaintiff.

On March 1, 2002, counsel for the John Doe defendants in the Melvin v. Doe case filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania. The Petition challenges the decision of the Pennsylvania Superior Court, which had held that the John Doe defendants could not have appellate review of their anonymity rights until after their identities had already been disclosed by the courts. The Supreme Court granted allowance of appeal on August 20, 2002. The briefs of the John Doe parties in the Supreme Court are scheduled to be filed on September 30, 2002.

Merkey v. Yahoo SCOX, Groklaw et. al.

A Utah man filed a lawsuit in the Utah Federal District Court alleging libel, identity theft and multiple other wrongs against over 200 defendants, including anonymous "John Doe" critics who participated in a discussion of another court case in which Utah-based technology company The SCO Group, Inc., is suing IBM. He then requested an expedited process for serving subpoenas that would unmask the anonymous critics. The Electronic Frontier Foundation, along with the American Civil Liberties Union of Utah, filed a friend-of-the-court brief in the case, arguing that a court must review the merits of a litigant's claims before legal process can expose the true names of online Does. The plaintiff dismissed the anonymous Yahoo! message board defendants from the case.

Miller v. Junior Achievement

After a controversy erupted about the financial situation of certain projects started by Jeffrey Miller, the former CEO of Junior Achievement, Miller and his wife sued his successors over their public comments blaming him for the problems. The Millers also sued the anonymous authors of several comments posted to stories on the web sites of two newspapers that covered the controversy, and issued subpoenas to identify the anonymous commenters. The trial court granted discovery because it decided that the comments were defamatory if false, and because it disagreed with the Dendrite line of cases holding that a plaintiff has to make an evidentiary showing as well as a legal showing before a court can strip anonymous speakers of their First Amendment right to speak anonymously. One of the subpoenaed papers complied with the order, but the second, the Indianapolis Star, appealed. Miller moved to dismiss for lack of appellate jurisdiction; Public Citizen appeared as amicus curiae to argue that the appeals court should hear the case. After the motion to dismiss was denied, Public Citizen filed an amicus brief urging the Indiana Court of Appeals to adopt the Dendrite test, and explaining how that test should be applied on the facts of the Miller case.

The Court of Appeals agreed that Dendrite’s balancing approach under the First Amendment was the proper way to adjudicate claims of need to identify anonymous speakers, but it refused to give accused speakers absolute protection from identification under the state’s shield law, as the Indianapolis Star had argued.

Mobilisa v. Doe

A Washington-based company brought suit in Washington state court against the Arizona operator of an anonymous e-mailing service and a Doe defendant over an e-mail sent by Doe to the company's employees, criticizing a married company executive over an e-mail that he had sent to his lover, arguing that the only way that the underlying e-mail could have been obtained was by hacking into the company's own computer system; the company claimed that federal anti-hacking statutes as well as the state tort of trespass to chattels had been violated. Under a commission to take discovery in a foreign state, plaintiff obtained an subpoena from Arizona state court to the emailing company to identify Doe. The e-mailing company, and eventually the Doe, objected to enforcement of the subpoena. The trial court ruled that, before the subpoena could be enforced, plaintiff would have to produce enough evidence to survive summary judgment, citing the Delaware decision in Doe v. Cahill, but ultimately held that sufficient evidence had been presented. Doe and the e-mailing service have appealed to the Arizona Court of Appeals.

Montana Holdings Ltd. v. Doe:

Montana Holdings, the developer of a resort in the Bahamas, brought suit against Doe, who created a web site at Resortbuyerbeware.com to denounce Montana. Montana brought a defamation claim in Arizona, claiming that because Doe registered his name through Domains by Proxy, Arizona was a proper place to sue. In response to a subpoena to Domains by Proxy, Doe moved to dismiss the complaint and to quash the subpoena, asserting that he was not an Arizona resident and arguing both that there was no personal jurisdiction in Arizona and that Montana had not made an adequate showing to overcome the First Amendment right to speak anonymously. The Superior Court for Maricopa County dismissed on personal jurisdiction grounds, holding that the Arizona courts had no interest in resolving a dispute where neither party was an Arizona resident.

Mortgage Specialists v Implode-Explode Heavy Industries

Mortgage Specialists sued Implode-Explode in a New Hampshire trial court for posting an allegedly confidential document on its web site, and for allowing an allegedly defamatory accusation about its president to be posted anonymously on a forum on its site. Mortgage sought an injunction against both postings, and demanded identification of both the source for the document and the anonymous poster. Implode argued that the court lacked personal jurisdiction, that the requested injunction was an impermissible prior restraint, and that the demand for disclosure was barred both by the reporters’ privilege and by the Dendrite line of cases. The trial court rejected all these arguments, issued the requested injunction.

Nam Tai v. Doe

Nam Tai, a company, brought suit on California against a person who used a psuedonym to post a message on an Intennet bulletin board that was allegedly defamatory. The California courts granted an unopposed request for discovery to identify the poster, but America Online to oppose enforcement of the subpoena in the Virginia courts. The Virginia Supreme Court ruled that principles of comity requiired it to defer to the California courts in deciding whether the need for discovery in the the case outweighed the First Amendment interests in the case, especially because, in the Court's view, the counts that stated claims for unfair business practices First Amendment concerns comparable to a libel case even though those claims raised issues of injury to reputation.

Nymox v. Doe

This case involves attempts by Nymox, a Canadian pharmaceutical corporation, to learn the identities of several pseudonymous individuals. The action originated in a Quebec court, where limited pre-filing discovery may be permitted by the Court. The Quebec court issued an Order requiring Yahoo!, Inc. to release whatever information it had about each of the eleven named pseudonyms. Yahoo! Canada responded that the requested information resides on U.S. servers and thus a U.S. subpoena/court order would be necessary before Yahoo! Inc. would release the information. John Does filed a motion to quash Nymox's request to the N.D. California court for a subpoena. The Court granted the motion to quash on October 29, 2002.

Ottinger v Doe

A former member of Congress and his wife filed suit in Supreme Court of Westchester County, New York against three anonymous posters on a newspaper blog for claiming that he paid bribes and engaged in other fraudulent conduct to secure a favorable zoning ruling. The judge ordered the newspaper to give notice to the anonymous posters and generally followed the rule of the Dendrite case, holding that plaintiffs had presented evidence in support of the elements of their prima facie case for defamation and that the balance of interests supported disclosure.

Parkmerced Investors v. Does 1 -18

Landlords owning two large apartment complexes in California’s Bay Area filed suit in federal court in San Francisco against anonymous tenants and former tenants who criticized their management on the ratings site apartmentratings.com, alleging defamation and Lanham Act claims, then, without obtaining leave of court, served subpoenas to identify those posters and others. Arguing that there was no basis for claiming a violation of federal law, and that there was no evidence showing that the negative statements were actionable, one of the Does moved for a protective order against enforcement of the subpoena, and sought to have the entire complaint dismissed as a SLAPP suit.

People of the State of Illinois v. Schrock

In a criminal prosecution, the defendant sought to identify the authors of postings on a message board maintained by a local internet service provider, to show the bias of certain witnesses for the prosecution by discovering whether they were the persons who had posted critical comments. The ISP objected to the subpoena on First Amendment grounds, and the court refused to enforce it.

Pilchesky v. Gatelli:

After Judy Gatelli, the President of the Scranton City Council, was sued for defamation by the host of an anti-incumbent web site and message board, she counterclaimed for defamation, conspiracy, and intentional infliction of emotional distress both by the site operator and by nearly ninety other anonymous constituents who had posted on the message board. She demanded that the anonymous critics be identified, and seven of the Does opposed her motion. In his initial ruling, the trial judge decided that no disclosure should be ordered until Gatelli had specified what each anonymous speaker had done wrong, and provided evidence to support her claims, and until the anonymous speakers were notified of the claims against them and given thirty days to oppose her request for discovery.

Pre-Paid Legal Services v. Sturtz

The case involves a subpoena issued by Pre-Paid Legal Services Inc. of Oklahoma (PPLS) requesting the identity of eight posters on Yahoo!'s "Pre-Paid" message board. The Electronic Frontier Foundation (EFF) represented two of the J. Does whose identities were subpoenaed, in a dispute between PPLS and another (known) party. PPLS argued that it needed the Does' identities to determine whether they were subject to a voluntary injunction preventing former sales associates who work for a competitor from revealing PPLS's trade secrets. The messages cited by PPLS, however, indicate only that the eight Does were critical of the company and how it treats its associates. EFF successfully argued that revealing the identity of these speakers will give PPLS the opportunity to punish its critics for speaking out against it. The Court issued no written decision, only an Order granting EFF's motion.

A professional association and its chief executive Catherine Bolton filed a petition for prelitigation discovery seeking to identify the sender of an email under the pseudonym "Catherine Hater" to the members of the association’s board complaining about the executive’s job performance and comparing her unfavorably to her predecessor. Petitioners contended that the email was defamatory. The Doe opposed discovery, claiming that the supposed defamation claim would not meet the standard for a motion to dismiss because, as to the association, there had been no "publication" because the email was sent only to the association's board, and that, in any event, the statements about the executive were nonactionable opinion rather than statements of verifiable or falsifiable fact. The New York Supreme Court for New York County discussed the standards for identification of anonymous speakers that were used in several other cases, including the five-part test articulated by the United States District Court for the Southern District of New York in Sony Music v. Doe. The court ruled that the association could not sue for lack of publication, but held that the statements about the executive implied statements of fact and hence could properly be the basis of a defamation action.

Rajagopal v. Does

This case involves a subpoena from a San Francisco plastic surgeon to an Internent service provider for the identities of five anonymous individuals who negatively reviewed the doctor on an Internet forum. The San Francisco Weekly published a lengthy article about the doctor in which it suggested that she had hired a consultant who manufactured positive online reviews for the doctor's business. The article also explains that the doctor is on probation for allegedly putting a patient into a vegetative state due to her "gross negligence" and "unprofessional conduct." Several of the defendants referenced the article on an online forum. A couple of the defendants are former patients who shared their negative experiences. The doctor's complaint alleges that the defendants "conspired together" to "engage in a campaign of unlawfully defaming and spreading lies about [her]." Public Citizen and the. Virginia ACLU filed a motion to quash the subpoena and to sanction the doctor and her attorney.

The Recording Industry Association of America served a subpoena on Verizon Internet, invoking the Digital Millennium Copyright Act to demand that the ISP identify one of its subscribers who, RIAA believes, is using access to the Internet gained through Verizon to share infringing music files with peer-to-peer software. An amicus brief from privacy advocates explains why this subpoena procedure violates constitutional rights to anonymous speech, privacy and due process. A separate amicus brief from Yahoo! and others explains why the service of such a subpoena, free of any complaint alleging that the subscriber has violated the law or any evidence of wrong-doing, would be outside the proper functioning of a court under Article III of the Constitution and violate due process.

RIAA v. University of North Carolina at Chapel Hill (M.D.N.C.)

RIAA v. University of North Carolina at Chapel Hill (M.D.N.C.): RIAA issued a subpoena to UNC pursuant to Section 512(h) of the Digital Millenium Copyright Act in an attempt to discover the identity of a UNC student who had allegedly committed copyright infringement by downloading and sharing music through a peer-to-peer file sharing network. The student and UNC each filed motions to quash the subpoena. The Court granted the motions to quash, holding that the DMCA did not authorize the issuance of subpoenas to an ISP, like UNC, that was merely functioning as a conduit for the transmission of the allegedly infringing activity. Although it did not rule on the issue of whether Section 512(h) violates Article III of the U.S. Constitution by having the clerk of the court, rather than a judge, issue the subpoenas, the Court's Order includes language raising serious questions about the constitutionality of the statutory provision.

Rocker Management LLC v. John Does 1 Through 20

Rocker is an investment management firm and Marc Cohodes is one of its employees. Cohodes manages a hedge fund that invests heavily in "short" positions, then publicizes what he considers the fraudulent accounting practices of the company. The John Does posted on Yahoo message boards, criticizing Cohodes for unfairly targeting certain companies. Rocker then sued them for unlawful restraint of trade and business libel. The lawsuit was filed in New Jersey, and the subpoena issued in San Francisco. In the San Francisco court, John Doe filed a motion to quash, asserting that Rocker had not alleged, much less established, a proper cause of action for these torts. In light of this failure, John Doe's first amendment right to speak anonymously should not be breached.

The campaign committee for Republican presidential candidate Ron Paul sued two Doe defendants in the federal district court in San Francisco over a campaign video that they created attacking Jon Hunstman as being too close to China, in part by showing Hunstman with his adopted Chinese daughters and by showing his fluency in Mandarin; the viedo also asks whether Hunstman really adopted the children. The complaint alleges that, because the closing screen in the video contains the words “Vote Ron Paul,” it falsely implies that Paul endorsed the video and hence infringes Paul’s common law trademark; at the same time it alleges that the screen defames him by falsely suggesting that he endorses the sentiments in the video. After filing the complaint, Paul moved for expedited discovery to compel Twitter and Google to identify the Does.

Rural/Metro v. Doe

EFF represented a Doe in this case, where Plaintiff Rural/Metro Corporation issued a third-party subpoena to online service provider Yahoo! Inc. requiring Yahoo to reveal the identities and portions of the online correspondence of individuals who participated in a public discussion concerning Rural/Metro's business held on a Yahoo message board. Without setting forth a single message, or indeed a single fact, Rural/Metro alleged that Does posted false, misleading and/or deceptive information about Rural/Metro, that Does may possibly sometime in the future reveal unspecified trade secrets belonging to Rural/Metro. Rural/Metro withdrew their request before the case could be heard.

SI03 v. John Does 1-31 and John Doe Companies 1-5

The maker of a dietary supplement sued multiple Doe individuals and companies in federal court in Chicago, Illinois, complaining of comments posted to a forum at bodybuilding.com that criticized Syntrax, one of the company's products, as well as the company itself. Plaintiff alleges that the criticisms come from its competitors and constitute defamation as well as a variety of related torts. Plaintiff subpoenaed identifying information from the proprietor of the web site, and then moved to compel production in federal court in Idaho. Plaintiff's motion accepted the Cahill standard but argued that plaintiff had supplied evidence sufficient to support of prima facie case. Defendant argued that the Dendrite standard is more protective of free speech and should be applied, but also argued that neither standard is met.

Sinclair v. TubeSockTedD, mzmolly and OWNINGLIARS

Sinclair, a Minnesota man whose You-Tube video and blog claiming to have done drugs and had sex with presidential candidate Barack Obama was roundly criticized by many anonymous Internet users, filed a defamation in the United States District Court for the District of Columbia against three of his critics for defamation, and obtained leave to use discovery to identify the Does. Representing one of the Does, as well as the ISP on whose web site that Doe posted, the lawyer for the Does objected to the subpoena, and filed an opposition to the ensuing motion for to compel. He argues that there is no diversity jurisdiction to sue Doe defendants, and no personal jurisdiction in DC. He also argues that Sinclair has not pleaded a proper defamation claim and that, in any event, he has not presented any evidence in support of his claim as required to meet the well-established standard to obtain identifying information.

Solers v. Doe

After the Software and Information Industry Association received a tip from a whistleblower that Solers, Inc. was using unauthorized copies of software, and initiated an investigation of that complaint, Solers filed a defamation action against the tipster in the Superior Court for the District of Columbia and obtained a subpoena to identify the Doe. The SIAA successfully moved to quash the subpoena on the ground that Solers, which refused to introduce evidence in support of discovery, had not met the test for breaching the Doe’s First Amendment right to speak anonymously, and the DC Court of Appeals refused to entertain an interlocutory appeal from that ruling. Solers then voluntarily dismissed its complaint and appealed both the grant of the motion to quash and the dismissal of its complaint.

Southern Union v. South West Gas

Defendant Southwest Gas issued a subpoena to an online service provider Yahoo! Inc. seeking to have Yahoo reveal the identity and online correspondence of Movant John Doe, a third party whose only known connection to this case is that he participated in a public discussion concerning Defendant's business held on a Yahoo! message board. The subpoena arises out of litigation currently pending in the Federal District Court in Arizona between Southwest and Southern Union Company. EFF filed a motion to quash in the Northernd District of California, where the subpena had been issued. The subpena was withdrawn before the case could be heard.

SPX Corp. v. Doe, No. 1:02cv0919 (N.D. Ohio)

SPX, a multinational company, sued an anonymous Internet poster in Ohio state court for making scathing criticisms on a Yahoo! message board. The comments, although they implied serious criminal misconduct, were phrased in highly opinionated terms. The Doe responded to the notice he received from Yahoo! by removing the action to the United States District Court for the Northern District of Ohio (the removal notice is provided below), then moving to quash (this brief is provided). The judge postponed a ruling on that motion (order is provided) based on defendant's representation that he could secure dismissal of the complaint on its face. The judge then dismissed the complaint under Rule 12(b)(6), holding that the language of the posts, coupled with the nature of the forum in which they were posted, supported the contention that they were pure opinion and hence protected by both Ohio law (which gives more expansive protection to opinion than the First Amendment) as well as the First Amendment itself. This opinion is also provided.

Swiger v. Allegheney Energy

In July 2003, an Allegheny Energy employee posted anonymous criticisms of the company in a Yahoo! message board room dedicated to discussion of the company. Three months later, the company filed suit against “John Doe” in Pennsylvania as an excuse to subpoena Yahoo! to disclose information about the poster of the critical remarks. Public Citizen's complaint alleges that Allegheny and its attorneys abused the processes of the courts by filing suit for the purpose of learning the poster's identity and then firing him after more than 16 years on the job

Tendler v. Doe:

A New York rabbi who was expelled from the rabbinical association and fired by his congregation sought prelitigation discovery in Ohio to identify bloggers who commented on the controversy. When Google refused to obey an Ohio subpoena, he obtained subpoenas in California. The bloggers moved to quash and filed a special motion to strike under the California anti-SLAPP law. Although the rabbi dropped the subpoenas, the bloggers obtained an award of attorney fees under the SLAPP law, and the rabbi has now appealed.

Tennessee v. Cobbins

Defendants in a carjacking / murder case moved to order the Knoxville News-Register to close its stories about the case to online comments, or, in the alternative, to require all online commenters to post their "true names and other identifying information," and establish guidelines for posting about the case and use "real time monitors" to prevent over-the-line comments from being posted The motion claimed that the online comments would create prejudice preventing a fair trial, and that some comments were threatening the defense lawyers, and suggested that requiring identification would both discourage comments that go over the line and make it possible to prosecute speakers who nevertheless transgress. In the alternative, the court-appointed defense lawyers asked to be relieved of the appointment because they were being threatened.

The court refused, citing the right to speak anonymously, and noting that none of the comments brought to the court's attention "rise to a level which would require allowing counsel to withdraw at this time." The prosecutor indicated that he is ready to "to investigate and/or prosecute anyone who anonymously or otherwise engages in criminal conduct toward any person, be it attorney, victim’s family member, court personnel or otherwise."

Thomas Cooley Law School v John Does 1 to 4

Thomas Cooley Law School sued an anonymous blogger, and three individuals who posted anonymous comments on the blog, claiming that their criticisms of the school for misleading advertising and for profiting from unwary law students both defamed the school and intentionally interfered with the law school’s business opportunities. After the main blogger moved to quash the subpoena for his identity, urging adoption of the Dendrite test for balancing the strength of the plaintiff’s tort claims and hence its need for the identifying information against the defendant’s First Amendment right to speak anonymously, the ISP hosting the site disclosed identifying information before the motion to quash could be heard, and Cooley then amended its complaint to identify the blogger as a defendant by his name. However, but the trial judge required Cooley to sequester the identifying information, ruling that the disclosure counted as “inadvertent disclosure” of information that was subject to a claim of privilege. Public Citizen filed an amicus curiae brief supporting the Doe blogger, which was accepted over a strenuous objection by Cooley. A hearing is now set for late October to decide whether to quash the subpoena. The court denied the protective order, but granted a stay pending appeal. The Michigan Court of Appeals granted a discretionary appeal, and reversed. The Court found it unnecessary to adopt special rules under the First Amendment because under Michigan’s rules of procedure, a trial court has discretion to grant a protective order barring identification of an anonymous defendant pending the filing of a motion for summary adjudication based on affidavits or other evidence, tantamount to the summary judgment or prima facie evidence standards applied under such cases as Dendrite v. Doe or Doe v. Cahill. The Court remanded for the application of this standard. A dissenting judge urged adoption of the Dendrite standard.

Thomson v. Doe

An anonymous review on Avvo criticized the services provided by a Tampa Florida divorce lawyer to her client. The lawyer sued the reviewer in Florida state court, then issued a Washington subpoena to compel Avvo to provide information identifying the client. Avvio served objections to the subpoena, and the lawyer moved to compel. The trial court denied the motion and the lawyer appealed. Because Washington state courts have not yet decided whether to adopt the Dendrite approach to subpoenas to identify anonymous speakers, which we created and have since championed, we entered the case on appeal to represent the client in defending her First Amendment right to remain anonymous. We argue that denial of the motion to compel should be affirmed because the lawyer presented no evidence that anything the client said constituted a false statement of fact, or that the allegedly defamatory words had caused the lawyer any injury.

ViroLogic v. Doe

Virologic filed a lawsuit against Doe after he posted a series of critical messages in a chat room on Yahoo! dedicated to ViroLogic discussions. The operative complaint asserts that Doe's messages give the false impression that he is in possession of trade secrets. Virologic then issued a subpoena to Yahoo for Doe's identity. Doe filed (1) a motion to dismiss the lawsuit under California's anti-SLAPP statute because Doe engaged in constitutionally protected speech; (2) a demurrer to dismiss the lawsuit based on the fact that Virologic failed to allege the existence of a trade secret and failed to allege that Doe disclosed a trade secret; and (3) a motion to quash the subpoena because Virologic did not comply with Code of Civil Procedure 2019(d), which requires that a trade secret be identified with particularity before discovery can commence.

Woods v. Doe

Actor James Woods sued an anonymous Twitter user in the Superior Court for Los Angeles County, California, for issuing a series of criticisms including one that supposedly accused Woods of being a cocaine addict. The user filed a special motion to strike under California’s anti-SLAPP statute, contending that the Tweets were all rhetorical statements of opinion. The antip-SLAPP statute normally stays discovery, Woods then moved to take discovery, claiming that he had good cause to take Doe’s deposition to explore the issue of whether Doe had posted false statements of fact with actual malice. Although Doe argued that the discovery was a thinly-veiled excuse to seek Doe’s identity, in violation of his First Amendment right to remain anonymous absent a prima facie showing of the elements of a valid claim, Woods argued that Doe had forfeited his right to oppose identification anonymity. Doe also argued that actual malice was not an issue on his special motion to strike because that motion was based only on the contention that his tweets were statements of opinion and not of actionable fact. The trial court denied discovery to identify Doe, reasoning that Doe’s limitation of the scope of the anti-SLAPP motion to the issue of opinion made the proposed discovery unnecessary; it did not rule explicitly on the proposition that anonymity was waived by entering an appearance to file an anti-SLAPP motion.

Yelp v. Hadeed

Hadeed Carpet Cleaning filed suit in Virginia state court against the authors of seven reviews on Yelp that confirmed what many other reviewers were saying – that Hadeed advertises very low prices to lure consumers but always finds a way to charge more. Hadeed asserted that the seven defendants were actually a Hadeed competitor, not customers, and demanded their identifying information. A trial judge in Alexandria rejected Yelp’s objections to the subpoena and held Yelp in contempt. Yelp appealed, arguing both Yelp need not respond to a Virginia state court subpoena, but that Hadeed must get a subpoena from the California courts before Yelp, headquartered in San Francisco, can be ordered to comply, and that Hadeed has not come close to meeting the well-accepted First Amendment test for identifying anonymous speakers. The Virginia Court of Appeals affirmed the order enforcing the subpoena, reasoning that the statutory standard in Virginia Code Section 8.01-407.1 allows discovery based merely on the plaintiffs’ representation that it has conducted an investigation and has not reason to believe that the anonymous statements about it are true. The Virginia Supreme Court granted leave to appeal, and received four amicus curiae briefs as well as briefs from Yelp and Hadeed. Oral argument was held on October 28, 2014.

Zwebner v. Does

Plaintiff Michael Zwebner is layman who has previously filed lawsuits and issued subpoenas to unmask anonymous internet posters who are not defendants in the lawsuits. It appears that Mr. Zwebner is not a US citizen and does not reside in the US. In federal court in Florida, Mr. Zwebner has now filed a lawsuit for defamation, intentional infliction of emotional distress, harassment, libel, and slander, asking for $18,000,000 in damages and an injunction against future speech. In this latest case, Lycos (operator of the Raging Bull forum) refused to comply with the subpoena after reviewing the Complaint. In addition, one Doe filed a Motion to Quash the subpoena to unmask identities of numerous, unnamed posters. The Court granted the motion. Mr. Zwebner filed a Motion to Reconsider that ruling based on procedural grounds. The Court granted the Motion for Reconsideration, without prejudice to another motion to quash. In addition, Mr. Zwebner filed a Motion to Compel Lycos to respond to the subpoena, which Lycos opposed.